MITHUN v. TORTURE CLAIMS APPEAL BOARD

HCAL 3344/2019

[2020] HKCFI 2633

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3344 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Bangladesh who entered Hong Kong illegally on 16 December 2015 and was arrested by police on 16 December 2015. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the local supporters of rival political party Awami League (“AL”) as he supported the opposition party Bangladesh National Party (“BNP”).     

2.  By a Notice of Decision dated 17 August 2018 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“persecution risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local AL supporters upon his return to Bangladesh as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those AL supporters to specifically target him for harm given that he was just an ordinary BNP supporter without any official position in his party, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Bangladesh with a large population of 157 million people spread across a vast territory of more than 140,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Bangladesh away from his home district in large cities such as Khulna where it would be difficult if not impossible for those local AL supporters to locate him.

4.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 24 July 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 5 November 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director. 

5.  On 11 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that he came to Hong Kong to avoid the danger in his home country without putting forward any proper ground for his intended challenge.

6.  However, before his application could be dealt with by the court, the Applicant on 1 September 2020 filed an affirmation requesting to “cancel” his application and to close his claim so that he can go back to his home country.

7.  As it is not clear from the Applicant’s affirmation as to the reason for his request to withdraw his application, the Registry on 24 September 2020 requested him to state clearly his such reason, and also informed him that otherwise the court may decide to dismiss his application in order to bring finality to the proceedings.

8.  On 28 September 2020 the Applicant replied to confirm that he wants to withdraw his application as he wants to return home.

9.  In the premises, and on the basis of the Applicant’s intention not to proceed with his application as he wants to leave Hong Kong to return to his home country, it would be appropriate that his application be dismissed rather than withdrawn. Accordingly I accede to his request and dismiss his application.      

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1